Brazil Ex-President’s Conviction Upheld, But System Still Favors Elites

An appeals court in Brazil has upheld the conviction on corruption charges of former President Luis Inácio “Lula” da Silva. Supporters of the still-popular leftist icon are sure to paint the decision as the latest sign of a judicial witch hunt against Lula and his political allies ahead of this year’s elections. But the case against Lula has unfolded largely by the books, illustrating how generously the Brazilian legal system treats powerful elites accused of wrongdoing.

A three-judge appeals court panel on January 24 unanimously upheld the conviction of former President Lula on charges that he accepted bribes from the construction firm OAS. Prosecutors said the company gave Lula a beachfront apartment, and in exchange for the favor, the ex-leader helped the company obtain lucrative public works contracts.

The charges were brought as part of a historic wave of anti-corruption prosecutions against elites in Brazil collectively dubbed the “Lava Jato,” or “Car Wash,” investigations. The massive anti-graft effort has exposed systematic bribery and influence peddling by major Brazilian firms and top politicians.

Contrary to the implication of some media reports, Lula is not at risk of being immediately sent to prison following the appeals court decision. According to a statement released by the courts, the ex-president still has further avenues of legal recourse, and a warrant for his arrest can only be issued once those are exhausted.

Despite the scandal swirling around him, Lula remains the frontrunner in polls forecasting the outcome of the presidential election scheduled for October. However, the criminal charges against him, which extend beyond the case revolving around the apartment, may interfere with his eligibility as a candidate.

Order and Progress

Lula is just one of a large number of powerful Brazilian elites in recent years targeted by wide-ranging anti-graft efforts. And although many defendants, like Lula, have claimed political persecution, their cases have proceeded through the justice system with relative impartiality.

The Car Wash investigations have targeted politicians of all stripes. Last year, for example, right-wing lower house speaker Eduardo Cunha was sentenced to a decade and a half in prison on corruption charges. Prosecutors also made multiple attempts to target sitting President Michel Temer, though their efforts were frustrated by congress.

There is widespread agreement that the Car Wash effort has helped bring to justice a variety of powerful political and economic actors participating in widespread graft, both within Brazil as well as across the Americas. Sergio Moro, one of the key judges handling the cases said the experience of the past few years shows that “much can be done even under the current system, as long as the problem is confronted and treated with seriousness.”

However, within Brazil’s convoluted judicial system, there are a number of problems with how cases of elite corruption are being prosecuted, particularly when it comes to the special privileges afforded to politicians.

As in many other Latin American countries, Brazilian politicians have special protections from prosecution while in office. As a result, the Brazilian congress — a third of whose members have been accused of crimes — must vote on whether or not to allow criminal proceedings to move forward when a sitting official is indicted. This process has twice spared Temer from standing trial.

The Car Wash investigations have also relied heavily on the use of plea deals, which former Attorney General Rodrigo Janot recently described as a “successfully tested” tool in anti-corruption probes. According to Janot, plea deals help to crack open and dismantle criminal organizations by giving investigators an inside look at otherwise “hermetically sealed” groups.

But as InSight Crime has previously reported, the reduction and at times elimination of prison time secured by high-profile defendants through plea agreements can “lead to the impression that information can buy impunity for serious crimes,” and may not satisfy the public’s demands for justice.

Defendants in high-level corruption cases also have many more avenues for appeal within the country’s judicial system than average Brazilians do. Whereas defendants in small-time drug trafficking cases often spend more time in prison awaiting trial than they would if they were actually convicted, elites like Lula have typically been allowed to remain free while they mount prolonged legal defenses.

Political Battles

Recent cases of elite corruption have passed through Brazil’s judicial system with relative impartiality and have targeted officials from every major political party, but powerful political forces have nonetheless attempted to manipulate, undermine and politicize the anti-graft efforts.

The scandal surrounding Lula has been particularly ripe for politicization. Officials and supporters of Lula’s Workers’ Party (Partido dos Trabalhadores – PT) have used the case to support arguments that elements of the judicial system have engaged in a political witch hunt against the PT and its allies.

“It’s clearly meant to go after the governors of PT, the parliamentarians of PT,” Leila Tavares, one of the organizers of a pro-Lula rally leading up to the trial, told InSight Crime. “There is a surreal dimension to this process that is resulting in the criminalization of PT and the left in general.”

There is scant evidence that prosecutors have unfairly targeted the PT over other parties, but it is undeniable that political rivals have harnessed the opportunity to muddy Lula’s image and cast themselves as clean by comparison.

Matthew Taylor, a professor at the American University who has closely observed the Car Wash cases, commented after the recent verdict that he had seen no indications of partisanship on the part of the courts. But, he said, the PT had taken a significant hit to its reputation.

“The PT was governing at the time of the scandal so it makes sense that the PT and their allies would suffer the most here,” Taylor said. “This is a simultaneous political and legal battle. The PT has been very skillfully working down both paths. Judges and prosecutors can only really go down one.”

The investigation and prosecution of the Car Wash cases may have been carried out in an impartial fashion, but that has hardly meant that elites have been supportive of the process. Throughout the Car Wash investigations, many Brazilian elites have tried to protect themselves by attempting to obstruct the anti-corruption effort.

The most notable example of this dynamic was the successful drive to remove former President Dilma Rousseff from office. Although the impeachment process that eventually led to Rousseff’s ouster was based on allegations unrelated to the corruption scandal, some of the elites implicated by the Car Wash probes believed that removing her from office would “stop the bleeding” from the anti-graft drive.

Temer, for instance, was accused of encouraging a businessman to pay hush money to former house speaker Cunha, to prevent him from providing further evidence in the corruption cases. Temer’s administration also cut funding for the police task force responsible for the Car Wash investigations.

Murky Outlook

Despite the scandals surrounding Lula, recent polls show him as the most popular presidential candidate. This suggests the Brazilian public is experiencing a degree of “corruption fatigue.” Since 2015, Brazilians have perceived corruption as the main or one of the main problems facing the country. However, only half of Brazilians polled last year believed that the Car Wash probes would actually lead to a reduction in corruption.

Indeed, should Lula become president, the future of the Car Wash operation could come into question. The ex-president has blamed the corruption probes for sending Brazil’s economy into a tailspin, and he has proposed enacting restrictions on the media, which he describes as being complicit in a larger political plot against the PT. Moreover, much of his base believes the corruption investigations have been unfair to Lula and the PT, and he would face little opposition from other elites entangled in the scandal if he moves to wind down the investigations.

The candidate closest to Lula in the polls, the far-right congressman and former military officer Jair Bolsonaro, has sparked controversy for making racist, sexist and homophobic remarks. But unlike other presidential hopefuls, he has managed to stay untainted by the Car Wash investigations. Even if Lula is allowed to run for president, many Brazilian voters may be willing to side with Bolsonaro over a candidate whose reputation has been tarnished by his association with the biggest graft scandal in the country’s history.

Still, Bolsonaro’s commitment to continuing the Car Wash investigations may not be ironclad. He has expressed strong support in the past for the anti-corruption initiative, even calling the decision on Lula’s conviction “historic.” But recent media reports suggest that Bolsonaro himself may have engaged in shady activities that helped him and his sons attain millions of dollars, possibly giving him the incentive to join much of the rest of Brazil’s elite political class in opposing the continuation of the Car Wash effort.

As InSight Crime recently reported, the seemingly endless stream of corruption scandals has helped tank Brazil’s economy, reducing the resources available for security spending, and has distracted the Brazilian government’s attention away from pressing security issues, including a war between the country’s two biggest gangs that is helping drive up violence around the country.

With the security crises in Brazil becoming ever more pronounced and the expansion of domestic criminal organizations abroad, the polarization of the political scene brought on by the continued anti-corruption drive could continue to hinder efforts to address other important crime-related issues.

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